Salmon Portland Chase (1808-1873)

Mr Chief Justice

Eighty-seven old Chief Justice Roger Brooke Taney, who
had been a justice under John Marshall died in October 1864. Three
months after Taney's death, on December 6, without confiding in
anyone and personally writing the nomination Lincoln chose Chase.
The Senate confirmed Chase without a committee and with no discussion
unanimously the same day.

The young lawyer who had written a brief for the Supreme
Court in the case of the John Van Zandt, a man sued for harboring
runaway slaves in 1842, in which he declared, "The very moment
a slave passes beyond the jurisdiction of the state in which he
is held as such, he ceases to be a slave; not because any law
or regulation of the state which he enters confers freedom upon
him, but because he continues to be a man, and leaves behind him
the law of force which made him a slave,"
[13] would soon
sit
in the same chair from where Taney had proclaimed in the Dred
Scott decision of 1857, " that blacks, not just slaves but free
blacks as well were not citizens of the United States and could
'therefore claim none of the rights and privileges which the Constitution
provides..."[14]

Chief Justice Chase took his oath of office on December
15 in the old Supreme Court chambers to become the sixth Chief
Justice of the United States Supreme Court.

On December 31, 1865, one of the new chief justice's first
acts was to appoint John Swett Rock, a black lawyer from Massachusetts
to present cases before the Supreme Court.[15]
Dr. Rock was received
upon the floor of the House of Representives, while it was in session, the
same day President
Lincoln signed a congressional resolution proposing the slavery be
outlawed(13th amendment). He was the first black person to be so honored.
Only a few years before the same Supreme
Court with Roger Taney as Chief Justice had handed down the Dred Scott
Decision. But Taney was dead and Chase was now Chief Justice. Rock described
Chase as, "a great and good man."and said "with him I think my
color
will not be a bar to my admission to the Supreme Court."

The justices were responsible for riding the circuit courts
when the Supreme Court was not in session. To avoid a conflict
with Justice Noah Swayne of Ohio, Justice Chase took charge of
Justice Taney's old fourth circuit of Maryland, Virginia and North
Carolina.

Chase took his place as Chief Justice as the Civil War
was drawing to a close. Not unlike John Jay who had been first
Chief Justice of the old federal United States, a new nation,
Salmon Chase was taking on a new nation also, he was the Chief
Justice of the new nationalistic United Stated that emerged from
the Civil war.

In 1866 Chief Chase announced, "That the war had changed
the government and the powers of government were essentially different
from what they were before the war."[16]

Most of the cases Chase would be hearing as Chief Justice
would involve the constitutionality of war legislation, reconstruction,
taxes and state regulations.

In the short term, only nine years, the Chase Court would
exercise the power of judicial review to declare eight federal
statues unconstitutional and strike down thirty-six state statues.
[17]

This judicial activism would thrust the Court into some
disputed reconstruction issues with the Congress.

The first of the Reconstruction cases to be heard was
the role of military commissions Ex Parte Vallandigham, had been
heard before Chase's nomination in February 1864, in the case
the Court refused to review proceedings from a military commission
because the commission is not a court. The military commission
came before Chase in December 1866 in the case of Ex Parte
Milligan.
Milligan had been arrested and charged with treason in 1864.

He was found guilty by a military commission in Indiana
and sentenced to hang as a spy but the sentence was not carried
out. In 1866 the Supreme Court reviewed Milligan's conviction.
In a landmark decision the Court ruled unanimously his conviction
was illegal since the civil courts in Indiana were operating and
competent to try Milligan on a treason charge and because he was
held in violation of the provisions of the Habeas Corpus Act of
1863. Viewing the ruling in Milligan as an attempt by the Court
to block Congressional Reconstruction in the South the Radical
Republicans unleashed a bitter attack on the Supreme Court.

The Federal Test Act of 1865 imposing an oath from candidates
for public offices, regular voters, ministers, and attorneys that
they had never engaged in rebellious acts and the United States
or given aid and comfort to the rebels or sympathized with their
cause, were voided in two cases heard on the same day, Ex parte
Garland and Cummings V. Missouri, by a 5-4 decision in 1867.

The Court announced in 1868 it was going to hear arguments
in Ex Parte McCardle in another challenge to military commissions.
McCardle had been convicted by a military commission for publishing
inflammatory articles condemning reconstruction in the south.
A federal court denied his writ of habeas corpus under the habeas
corpus act of 1867.

He appealed to the Supreme Court. Before his case was
heard and over President Andrew Johnson's veto, Congress enacted
a statue known as the McCardle repealer, denying the Supreme Court
appellate jurisdiction in habeas corpus petitions brought under
the habeas corpus act of 1867. Chief Chase in 1869 accepted the
constitutionality of the repealer because Article III, section
2, made the Court's appellate jurisdiction subject to 'such exceptions'
. . . as the Congress shall make.'[18]

Chase made it known that the rest of the Court's appellate
authority was still in tact and used it in Ex Parte Yerger when
the Court accepted jurisdiction of a habeas corpus appeal under
the judiciary act of 1789.

The Court found the Act of March 1868 did not affect appellate
jurisdiction of a court established by the Constitution or acts
of Congress passed before 1867. Chief Justice Chase used the Yerger
case to admonish Congress for the McCardle repealer. Warning Congress
that the Court would not accept total denial of it's power of
habeas corpus, Chase reaffirmed the scope of the Writ of habeas
corpus.

Many legal difficulties, private and public caused by
the war had to be settled, including the status of the seceding
states.

In his opinion in Texas v White(1869), a case that decided
the question of the status of the southern states during the war,
Chase and the Court had to determine if US Bonds seized and sold by the
Confederate state of Texas
were payable by Texas after the war was over. Chase first presented the
traditional Lincoln theory of secession. That secession did not destroy the
State of Texas, nor the obligation
of Texans as citizens of the United States.

Chase noted that the Union was not artificial or an arbitrary one. The Union
was perpetual. "It began among the Colonies, and grew out of common origin,
mutual
sympathies, kindred principles, similar interest, and geographical relations.
It was confirmed and strengthened by the necessaries of war, and received
form,
and character, and sanction from the Articles of Confederation. By these the
Union was solemnly declared to be 'perpetual." And when these
Articles were founded to be inadequate to the exigencies of the country, the
Constitution was ordained 'to form a more perfect Union." It is difficult to
convey the idea of indissoluble
unity more clearly than by these words. What can be indissoluble if a
perpetual Union, made more perfect, is not?"

Texas v. White ruled that secession was legally impossible,
nevertheless the process of Reconstruction was still Constitutional, grounded
as it was in Congress's
power to ensure each state a republican government and to recognize the
legitimate government in any state. Chase's opinion reaffirmed the permanence
of the Union and its states
and the duty of the states to the rights and obligations of all citizens.

'The Constitution, in all its provisions, looks to an
indestructible Union composed of indestructible States.'

Mr. Chief Justice Chase went on to quash any challenges
to the congressional acts of reconstruction by conceding the constitutional
right of permanent reconstruction devolved upon the congress.
Mr. Chief Justice Chase cited the opinion in Luther V. Borden
1849, a case originating from the Dorr Rebellion in 1842 in Rhode
Island.[19]

In White V. Hart 1872 the Court reaffirmed it's decision
in Texas V. White that the relationships of States of the Union
were a political question for the political branches to resolve.

Chase was strong in his belief that no state should be
readmitted back into the union until it gave voting rights to
Negroes. The Congress approved the Civil Rights Act of 1866 that
passed over President Andrew Johnson veto. While the Congress
would adopt the first two clauses of the Amendment Fourteen to
the Constitution that Chase had written, he criticized Congress
for adding additional propositions to his amendment but would
use the additions in his last dissent from the decision of the
Supreme Court in the Slaughterhouse cases (1873).